[Senate Executive Report 109-14]
[From the U.S. Government Publishing Office]



109th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      109-14

======================================================================



 
 MUTUAL LEGAL ASSISTANCE TREATIES WITH GERMANY AND JAPAN (TREATY DOCS. 
                           108-27 AND 108-12)

                                _______
                                

                 April 6, 2006.--Ordered to be printed

                                _______
                                

          Mr. Lugar, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

             [To accompany Treaty Docs. 108-27 and 108-12]

    The Committee on Foreign Relations, to which was referred 
the Treaty between the United States of America and the Federal 
Republic of Germany on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on October 14, 2003, and a 
related exchange of notes (Treaty Doc. 108-27), and the Treaty 
between the United States of America and Japan on Mutual Legal 
Assistance in Criminal Matters, signed at Washington on August 
5, 2003 (Treaty Doc. 108-12), having considered the same, 
reports favorably thereon and recommends that the Senate give 
its advice and consent to ratification thereof, as set forth in 
this report and the accompanying resolutions of advice and 
consent to ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background.......................................................2
III. Summary of Key Provisions of the Treaties........................2
 IV. Implementing Legislation.........................................6
  V. Committee Action.................................................6
 VI. Committee Recommendation and Comments............................6
VII. Text of Resolution of Advice and Consent to Ratification.........6

                               I. Purpose

    Both Treaties are designed to provide a formal basis for 
mutual cooperation between the respective parties on law 
enforcement matters and are expected to enhance the ability of 
U.S. law enforcement to investigate and prosecute a variety of 
offenses.

                             II. Background

    The Treaties are the latest in a series of mutual legal 
assistance treaties (``MLATs'') negotiated by the United States 
over the past few decades. The United States currently has 
MLATs in force with over 50 countries. Along with extradition 
treaties, MLATs provide a formal means for facilitating and 
expanding cooperative law enforcement efforts with other 
nations.
    Both Treaties addressed by this report were signed during 
the administration of President George W. Bush and submitted by 
President Bush to the Senate during the 108th Congress.

             III. Summary of Key Provisions of the Treaties

    Detailed article-by-article discussions of the Treaties may 
be found in the Letters of Transmittal from the Secretary of 
State to the President, which are reprinted in full in Treaty 
Documents 108-27 and 108-12. A summary of the key provisions of 
the Treaties is set forth below.

                               A. GENERAL

    Although these two Treaties each have distinctive features, 
as with existing U.S. mutual legal assistance treaties they 
follow a common format and cover essentially the same matters, 
often with only minor variations in style and language. The 
major articles address the following:

   The scope of assistance of the Treaty, in the form 
        of a general statement of purpose and a general 
        inventory of the kinds of assistance available;

   Identification of the Central Authorities 
        responsible for administration of the Treaty;

   The limitation on assistance available at the 
        discretion of the Central Authority in particular types 
        of cases;

   The form and contents required of any request for 
        assistance under the Treaty;

   How the costs associated with a particular request 
        are to be allocated;

   The limitations on use or disclosure of any evidence 
        or information obtained pursuant to a Treaty request;

   The procedure for taking testimony or evidence in 
        the requested party at the behest of a treaty partner;

   The agreement, and any conditions thereon, to 
        execute a search and seizure upon request of a Treaty 
        partner;

   Provisions for the return of property transferred to 
        the Treaty partner;

   The circumstances under which the parties are to 
        have access to information found in the records of 
        government agencies of the other party;

   The procedure for inviting witnesses to travel 
        abroad and give testimony in the territory of the 
        requesting party;

   The provision for the transfer of persons in custody 
        (prisoners) between the parties to permit them to 
        participate in foreign proceedings; and

   Assistance in forfeiture proceedings.

                           B. KEY PROVISIONS

1. Scope of Assistance

    These Treaties address assistance provided in connection 
with the investigation and prosecution of criminal offenses, as 
well as in certain related proceedings. Each Treaty would make 
assistance available for certain administrative investigations, 
such as those by the Securities and Exchange Commission or the 
Federal Trade Commission, as well as those by U.S. state 
authorities, when meeting the standards contained in the 
relevant Treaty.
    Under Article 1(1) of the Treaty with Germany, the parties 
are to provide assistance in connection with investigations and 
proceedings relating to regulatory offenses under German 
antitrust law, as well as to criminal investigations and 
proceedings relating to other regulatory offenses to the extent 
that they may lead to court proceedings or be referred for 
criminal prosecution in the requesting party and would 
constitute criminal offenses in the requested party. Article 
1(3) of the Treaty with Japan permits the parties to provide 
assistance in connection with administrative investigations of 
suspected criminal conduct in such cases and upon such 
conditions as the requested party deems appropriate. The 
requesting party would have to certify that the authority 
conducting the investigation has statutory or regulatory 
authority for the administrative investigation of facts that 
could constitute criminal offenses, and that the evidence 
sought will be used in the requesting party in an 
investigation, prosecution or other proceeding in criminal 
matters, including the decision of whether to prosecute.

2. Central Authorities

    Each Treaty requires the two parties to designate Central 
Authorities to make and receive requests under the Treaty. 
Article 2 of the Treaty with Germany designates the Attorney 
General or a person designated by the Attorney General as the 
Central Authority for the United States, and the Federal 
Ministry of Justice as the Central Authority for Germany. It 
also permits, in cases of urgency, for requests to be 
communicated directly between the Ministries of Justice of the 
Laender or the Federal Cartel Office of Germany and the U.S. 
Central Authority. In addition, article 1(3) of the Treaty with 
Germany recognizes state and federal entities named in an 
Appendix to the Treaty as competent authorities for purposes of 
generating requests for assistance within each party or for 
executing incoming requests for assistance.
    Article 2 of the Treaty with Japan designates the Attorney 
General or a person designated by the Attorney General as the 
Central Authority for the United States, and the Minister of 
Justice or the National Public Safety Commission or persons 
designated by them as the Central Authorities for Japan. The 
dual designation of Central Authorities by Japan was 
necessitated by the lines of jurisdiction of the two entities. 
A related exchange of notes between the parties, submitted for 
the information of the Senate, clarifies that Japan's Ministry 
of Justice will serve as the Japanese Central Authority with 
respect to all requests made by the United States, while the 
Japanese Central Authority for Japanese requests is to be 
determined by the source of the request within Japan. Because 
the Minister of Justice will be the Central Authority for all 
requests made by the United States, the dual designation is not 
expected to affect the ability of the United States to obtain 
assistance under the Treaty. Moreover, the two Japanese 
entities will establish a mechanism to avoid duplicative 
requests and to facilitate efficient and speedy provision of 
assistance.

3. Limitations on Assistance

    Both Treaties contain provisions that describe the 
circumstances under which assistance may be refused. Article 3 
of the Treaty with Germany provides that the parties may deny 
requests for assistance under the Treaty if execution of the 
request would prejudice their sovereignty, security, or other 
essential interests. Article 3 of the Treaty with Japan 
similarly provides that the parties may deny requests for 
assistance when they consider that execution of a request would 
impair their security or other essential interests. The Treaty 
with Japan also gives the parties the discretion to deny 
requests which they consider to be related to a political 
offense, or which they consider do not conform to the 
requirements of the Treaty. In addition, it allows the parties 
to deny a request for assistance where execution of the request 
would require a court warrant or other compulsory measure under 
the law of the requested party and the requested party 
considers that the conduct that is the subject of the 
investigation, prosecution or proceeding would not constitute a 
criminal offense under its laws.

4. Limitations on Use

    As with other U.S. MLATs, the Treaties allow the Central 
Authority of the party providing evidence or information under 
the Treaty to prohibit its use in other investigations or 
prosecutions without that party's consent or until after it has 
been publicly disclosed as a consequence of the use for which 
it was intended. They also contain exceptions typical of such 
treaties that are designed to permit compliance with U.S. 
Constitutional obligations to turn over certain types of 
evidence or information to criminal defendants. Article 15 of 
the Treaty with Germany additionally provides that, unless 
specifically prohibited by the sending party at the time the 
evidence or information is provided, it may be used by the 
receiving party without prior consent: for any other purpose 
for which assistance would be available under the Treaty; for 
preventing the commission of serious crimes; or for averting 
substantial danger to public security. Each Treaty also 
includes confidentiality limitations that permit the party 
providing the evidence or information to insist that it be kept 
confidential or be used only subject to specified conditions.
    Article 16 of the Treaty with Germany establishes separate 
rules for the confidentiality and use of information or 
evidence provided under the Treaty in connection with 
investigations or proceedings in antitrust cases. For instance, 
such information or evidence is to be treated as confidential 
by the requesting party to the same extent as such information 
or evidence obtained under its domestic law, with disclosure 
limited to persons or authorities (including courts or 
administrative authorities) competent for prosecution of 
antitrust offenses. The article also provides that the 
information or evidence may be disclosed in public court 
proceedings or in judicial decisions unless the requested party 
objects, while limiting objections to exceptional cases.

5. Testimony and Evidence in the Requested Party

    A primary purpose of the MLAT program is to permit the 
United States to obtain evidence from foreign jurisdictions in 
a form admissible in American courts. American courts usually 
do not have authority to subpoena foreign nationals living 
abroad. Even in cases where foreign requirements can be 
overcome, U.S. law imposes specific requirements that must be 
met before depositions can be taken overseas and the testimony 
subsequently introduced in criminal proceedings in this 
country. MLATs are designed to overcome these obstacles, in 
addition to meeting the practical and diplomatic challenges of 
taking depositions in a foreign country. Therefore, as with 
existing U.S. MLATs, these Treaties obligate the parties to 
call witnesses, using compulsory process if necessary.

6. Records of Government Agencies

    Consistent with general U.S. MLAT practice, the Treaties 
divide governmental information available under their 
provisions into two categories, namely, publicly available 
information (which must be provided upon request) and 
information available to judicial and law enforcement personnel 
but not to the general public (which may be provided upon 
request).

7. Search and Seizure

    Both Treaties require search and seizure requests to 
include information satisfying legal requirements for such 
measures under the law of the requested party. Article 11 of 
the Treaty with Germany further requires that the offense upon 
which the request is based be criminally punishable (or by a 
fine under German law) under the laws of both parties and that 
the request contain an order for seizure by a competent 
authority in the requesting state. Both Treaties feature an 
authentication procedure designed to satisfy U.S. legal 
requirements for admissibility of evidence. Finally, each 
Treaty has a provision authorizing conditions for the 
protection of third party interests in property.

8. Special Investigative Techniques

    Article 12 of the Treaty with Germany allows for the 
parties to use certain types of special investigative 
techniques under the Treaty at the request of the other, 
including telecommunications surveillance. The provision makes 
clear, however, that such assistance may be provided only to 
the extent permitted by the requested party's domestic law. The 
Treaty covers legal assistance in criminal matters. 
Accordingly, the restriction in Article 12 that such 
surveillance be subject to ``conditions prescribed by its 
domestic law'' means that any surveillance that is conducted 
will be governed by statutes authorizing such activity in 
criminal cases (currently, at the federal level, Title III of 
the Omnibus Crime Control and Safe Streets Act of 1968). The 
executive branch has testified that the United States does not 
have authority under U.S. law to conduct electronic 
surveillance based solely on collecting evidence of a foreign 
crime and would not be able to provide assistance in such 
cases. The provision was included at Germany's request and will 
allow the German government to respond at their federal level 
to requests for such techniques from the United States.

9. Implementation

    The Committee notes that the provisions of the Treaties are 
self-executing. As with earlier U.S. MLATs, they will be 
implemented by the United States in conjunction with applicable 
federal statutes. Additionally, the Treaties contain provisions 
clarifying that they do not create any new, nor affect any 
existing, private right of action to exclude or suppress 
evidence or impede execution of a request.

                      IV. Implementing Legislation

    No new implementing legislation is required for either 
Treaty. An existing body of federal laws will suffice to 
implement the obligations of the Treaties.

                          V. Committee Action

    The committee held a public hearing on the two Treaties on 
November 15, 2005, in which it heard testimony from 
representatives of the Departments of State and Justice (a 
transcript of this hearing and questions and answers for the 
record may be found in S. Hrg. 109-342). On March 14, 2006, the 
committee considered the two treaties, and ordered them 
favorably reported by voice vote, with a quorum present and 
without objection, with the recommendation that the Senate give 
its advice and consent to their ratification.

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the two 
Treaties are useful instruments for facilitating international 
law enforcement cooperation and are thus in the interest of the 
United States. The committee urges the Senate to act promptly 
to give advice and consent to their ratification.

     VII. Text of Resolutions of Advice and Consent to Ratification


                          TREATY WITH GERMANY

    Resolved (two-thirds of the Senators present concurring 
therein),
    The Senate advises and consents to the ratification of the 
Treaty between the United States of America and the Federal 
Republic of Germany on Mutual Legal Assistance in Criminal 
Matters, signed at Washington on October 14, 2003, and a 
related exchange of notes (Treaty Doc. 108-27).

                           TREATY WITH JAPAN

    Resolved (two-thirds of the Senators present concurring 
therein),
    The Senate advises and consents to the ratification of the 
Treaty between the United States of America and Japan on Mutual 
Legal Assistance in Criminal Matters, signed at Washington on 
August 5, 2003 (Treaty Doc. 108-12).

                                    

      
